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Obama’s Nominee: A Cloudy Crystal Ball

Dahlia Lithwick, Guest ColumnistApril 15th, 2010

While nobody was surprised when Justice John Paul Stevens announced that he was leaving the Supreme Court just a few days before his 90th birthday, many had hoped he would hold off until after the midterm elections. Just a few short weeks after the bruising congressional fight over health reform legislation, and with the Senate as polarized as its been in recent memory, a hot summer’s wrestling match over the composition of the Supreme Court looked to be in nobody’s best interest. But retire Stevens did, and President Obama is faced with a decision that has very little to do with his view of constitutional jurisprudence and everything to do with his stomach for constitutional blood sport.

The courts have always been a core issue for the GOP and the Stevens announcement has already unleashed a torrent of speculation that the as-yet-unnamed nominee to replace him will be “outside the mainstream” and “radical.” While the rumored shortlist–comprised of federal appeals court judges Merrick Garland, Diane Wood, and Solicitor General Elena Kagan–is so far from “radical” as to be, well, boring, the chatter already suggests that if the President wants to spare himself a fight, the safe bet is Garland. Garland is a well-respected moderate-liberal on the prestigious DC Circuit Court of Appeals. If he has been slightly to the right on criminal defense and executive power questions, he has been on the left in environmental cases. Lawyers and Washington insiders adore him, and his law clerks want to be him.

Kagan presents a slightly stickier wicket for Obama both because she has no judicial experience and because until last October she had no courtroom experience either. Liberals are worried about her views of expansive executive branch powers in wartime. Conservatives are squawking about her decision, as the dean of Harvard Law School, to join a brief that would have barred military recruitment on campus because of the military’s “don’t ask, don’t tell” policy. Wood, considered one of the brightest appeals court judges on the Seventh Circuit Court of Appeals will be the toughest sell, as she has a string of controversial abortion decisions on her record. If Obama doesn’t want to go down the abortion road at all this summer, he may decide to take a pass on Wood, even though they are longstanding colleagues and friends.

In all of the Stevens post-mortems, it has been widely repeated that he brought two distinctive skills to the high court: One was his (increasingly) strong and clear liberal voice. The other was his seemingly miraculous ability to beg, borrow or steal the elusive fifth vote in order to cobble together improbable majorities. To these two strengths I would add that Stevens also used his seniority at the court masterfully. Whether it was his power as the senior justice to assign the writing of the majority or dissenting opinions–a power he deployed to bring Justice Kennedy into the fold on several key cases–or the power afforded by his seniority to speak second at case conferences, when Steven departs the court in June, he will take with him more than just one vote. Conservatives look at all this and say “good riddance.” Liberals mourn that he leaves shoes that will prove almost impossible to fill.

Liberals thus find themselves on the horns of a practical problem: Should they look for a new Justice who brings Stevens’ full-throated embrace of the role of courts in protecting women, minorities, the environment, death row defendants, and Guantanamo detainees? Or is it more useful to find someone with the political savvy to bring Justice Kennedy back to the liberal’s prom? Supporters of Judge Wood suggest that she has the kind of deep constitutional vision that would unify and inspire the court’s liberal wing. Supporters of Kagan and Garland argue that they have the people power to bridge differences and forge broad alliances. Thus, in addition to facing a tough decision about what kind of resistance he wants to stir up in this next confirmation fight, President Obama needs to consider whether the court most needs a liberal cheerleader or an accomplished tactician.

Finally, in naming a Stevens replacement, the President must consider his own legacy. His appointment of Judge Sonia Sotomayor last spring was historic. By naming the first Hispanic Justice with an amazing personal narrative he ensured broad public support and a relatively painless confirmation. But Obama must now replace the court’s liberal leader, and many liberals believe that his choice needs to be historic for the court; not just the country. Sotomayor has proved to be precisely what she promised to be: a careful, moderate jurist with a common-law sensibility and a tendency to eschew epic constitutional proclamations. Progressives yearning for a new William Brennan or Thurgood Marshall will be crushed if the president taps someone of similarly modest constitutional vision.

Over a year into his presidency, one of the central enigmas of the Obama Worldview is whether he sees any special role for the courts, and what he believes that role should be. Unlike George Bush, whose reshaping of the federal courts was an unparalleled victory, Obama has tended to view the courts as secondary. Yet he has begun to signal, in recent months, that he indeed has a fully-formed vision of what the Supreme Court should be doing, and how the Roberts Court has failed to live up to that vision. Whether and how his next court pick finally communicates that vision to the public remains to be seen.

Dahlia Lithwick is a Senior Editor at www.slate.com where she covers the Supreme Court and other legal issues.